the death penalty for rape; and out-
lawed life sentences for juveniles con-
victed of crimes other than murder. Under
Thomas's narrow reading of the Eighth
Amendment, all these cases would be
wrong; under his approach to stare deci-
sis, all would be overturned.
Thomas's approach to the Eighth
Amendment underlines some of the
problems with his approach to the Con-
stitution, and with originalism generally.
Only two Justices, Thomas and Scalia,
have built their jurisprudence around
originalism (one of them faintheartedly),
so its full adoption would require the
trashing of dozens, if not hundreds, of
Court precedents. Further, notwith-
standing Thomas's enduring certainties,
it is difficult to know what the framers
would have thought of any given situa-
tion. (Alito, a conservative but not a full-
fledged originalist, captured this prob-
lem nicely, in the oral argument about
the California law on violent video
games. Following up on a series of ques-
tions by Scalia, Alito asked the lawyer, "1
think what Justice Scalia wants to know
is what James Madison thought about
video games. Did he enjoy them?") It is
true, too, that the framers often dis-
agreed profoundly with each other,
making a single intent behind the Con-
stitution even more difficult to discern,
and the twenty-seven amendments (all
with their own framers) created another
overlay of complication. For all of
Thomas's conviction, originalism is just
another kind of interpretation, revealing
as much about Thomas as about the
Constitution.
I n "Boiling Mad: Inside Tea Party
America," the Times reporter Kate
Zernike wrote, "In the originalist view,
and the Tea Party view, the perversion
of the Constitution took off during the
presidency of Franklin Delano Roose-
velt." On this issue, as ever, Thomas led
where the conservative movement soon
followed.
Early in the New Deal, the Supreme
Court struck down several of President
Roosevelt's signature initiatives as vio-
lating the Commerce Clause of the
Constitution. If the law did not directly
affect commerce "among the several
states," in the words of Article I, the
Nine Old Men on the Court said that
Congress had no right to pass it. F.D .R.
responded to these setbacks with his
infamous court-packing plan, but a
change of heart by Justice OwenJ. Rob-
erts in 1937, followed by Roosevelt's
own appointments to the Court, trans-
formed the understanding of that pro-
vision. In a series of cases, the Justices
gave Congress essentially unlimited
power to regulate the national economy.
In Wickard v. Filburn, from 1942, the
Court said that the federal
government could regu-
late the amount of wheat
grown on a farm, even if
none of the wheat was sold
across state lines, or even if
no wheat was sold at all.
Because the production of
wheat, taken in aggregate,
did affect interstate com-
merce, the regulation was
permissible. With that, the issue of the
Commerce Clause more or less van-
ished from the Supreme Court's docket
for decades-until Thomas and the Tea
Party brought it back to life.
In 1995, the Supreme Court, in an
opinion by Chief Justice William H.
Rehnquist, did finally strike down an-
other law as violating the Commerce
Clause. In United States v. Lopez, the
Court rejected a federal law that made it
a crime to possess a gun near a school.
Rehnquist's opinion said, in essence,
that possession of a gun in or near a
school was so completely remote from
the national economy that Congress
had no right to prohibit it.
Thomas agreed-and then some. In
a concurring opinion, he said, "I write
separately to observe that our case law
has drifted far from the original under-
standing of the Commerce Clause. In a
future case, we ought to temper our
Commerce Clause jurisprudence." Even
Rehnquist had acknowledged the long
line of cases that said the Commerce
Clause was satisfied if the activity in
question "substantially affects" interstate
commerce. In a characteristically lengthy
and detailed opinion, Thomas said that
the early New Deal Court-the Nine
Old Men-was right, and all the Jus-
tices over the following six decades were
wrong. Thomas wrote, "From the time
of the ratification of the Constitution to
the mid 1930's, it was widely understood
that the Constitution granted Congress
only limited powers, notwithstanding
tT
'SJ
the Commerce Clause." By Thomas's
reading, Social Security and the Na-
tional Labor Relations Act, to say noth-
ing of Medicare and Medicaid, might all
be unconstitutional. "Justices can be
influential by indicating to lawyers the
boundaries of what's possible," Eugene
V olokh, a professor at U.C.L.A. School
of Law and a widely read blogger, said.
"There is conventional wisdom about
what's possible, like What-
ever you think about the
Commerce Clause, no one
is going to go back to the
pre-1937 approach,' or
'The Second Amendment
is a closed issue.' Thomas
has shown that sometimes
the conventional wisdom
. "
IS wrong.
Supreme Court Jus-
tices, especially those who are appointed
young, like Thomas, can afford to take
the long view. On March 23, 2010,
President Obama signed into law the
Patient Protection and Affordable Care
Act. That same day, Kenneth Cucci-
nelli, the Attorney General of Virginia,
filed one of the first of several legal
challenges to the law. Earlier this year,
sixteen years after Lopez, Judge Roger
Vinson, of the Federal District Court in
Pensacola, struck down the law in its
entirety-and he relied several times on
Thomas to do so. (The Eleventh Cir-
cuit affirmed Vinson, in part.) Qyot-
ing Thomas's concurring opinion in
Lopez, Vinson said that the Obama
Administration's position would allow
the federal government to "penetrate
the recesses of domestic life, and con-
trol, in all respects, the private conduct
of individuals." These words, of course,
would fit just as well in a speech by
Ginni Thomas as in an opinion by her
husband.
Four more circuit courts of appeals
are slated to weigh in on the constitu-
tionality of the health-care law. In due
course, the Justices will have their turn.
I asked Cuccinelli what role Thomas
might play in the resolution of the
health -care case. "I don't like to make
predictions," he told me. "But I know
I've got his vote." .
NEWYORKER.COM/GO/ ASK
Chat with Jeffrey T oobin about the Thomases.